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Judge refuses to dismiss bias case against Library of Congress

Peter TerVeer, gay news, gay politics dc

Peter TerVeer was allegedly subjected to harassment based on his sexual orientation while working at the Library of Congress. (Washington Blade file photo by Michael Key)

A federal judge on March 31 ruled that a gay man who sued the Library of Congress for firing him in 2012 because of his sexual orientation has legal standing to claim he’s entitled to protection under Title VII of the U.S. Civil Rights Act of 1964.

In a 34-page opinion, U.S. District Court Judge Colleen Kollar-Kotelly denied a motion by the U.S. Attorney for D.C. that the discrimination lawsuit filed by former Library of Congress management analyst Peter TerVeer should be dismissed on summary judgment.

Kollar-Kotelly rejected the U.S. Attorney’s assertion that TerVeer failed to show he has standing to pursue his claim that he’s covered under the U.S. Civil Rights Act on grounds that he was subjected to illegal sex discrimination based on gender stereotyping as a gay man.

In a split ruling, Kollar-Kotelly granted the U.S. Attorney’s request to dismiss other claims by the lawsuit that the Library of Congress violated TerVeer’s constitutional rights as well as violated Library of Congress regulations and policies.

But according to TerVeer’s attorney, Christopher Brown of the D.C. law firm Ackerman Brown, the ruling upholding TerVeer’s ability to move ahead to trial on the Title VII grounds is an important development for gay rights.

“We are pleased that we will have the opportunity to develop these claims and present them in court,” Brown told the Blade. “In my opinion this represents movement forward for the LGBT community bringing us one large step closer to equal treatment under Title VII.”

He noted that had Kollar-Kotelly dismissed the lawsuit’s claim seeking redress under Title VII, as the U.S. Attorney had urged, the opportunity to push for Title VII protection for gay people would have been lost in this case.

Title VII of the famed 1964 Civil Rights Act bans discrimination based on race, religion, ethnicity, gender, and, according to recent court rulings, gender identity, but not sexual orientation by itself.

With legislation calling for banning job discrimination based on sexual orientation and gender identity stalled in Congress, gay rights attorneys have argued in cases similar to TerVeer’s that lesbians and gay men are covered under Title VII. The attorneys, including those with Lambda Legal, claim that anti-gay discrimination is based on sex discrimination – which is covered under Title VII – because its perpetrators perceive gay people as not conforming to traditional gender roles.

In prior decisions, federal courts have ruled that transgender people are covered under Title VII’s prohibitions against sex discrimination.

In his lawsuit, TerVeer charges that he was fired after being harassed and humiliated by a supervisor who repeatedly quoted biblical passages condemning homosexuality.

The lawsuit says although TerVeer was targeted because he’s gay, he encountered employment discrimination and harassment based on his gender, gender stereotyping and his religious beliefs, which he says didn’t conform to those of supervisor John Mech.

Mech and library officials have declined to comment on TerVeer’s allegations, saying they are bound by a Library of Congress policy of not discussing pending litigation.

Brown said the judge’s decision to grant the government’s motion to dismiss the constitutional and other legal claims by the lawsuit don’t pose a significant disadvantage to the case. He said those claims had been made as a backup in the event that the court dismissed the Title VII claims.

“As Plaintiff has alleged that Defendant denied him promotions and created a hostile work environment because of Plaintiff’s nonconformity with male sex stereotypes, Plaintiff has met his burden of settling forth ‘a short and plain statement of the claim showing that the pleader is entitled to relief’ as required by Federal Rule of Civil Procedure,” Kollar-Kotelly said in her ruling.

“Accordingly, the Court denies Defendant’s Motion to Dismiss Plaintiff’s sex discrimination claim (Count I) for failure to state a claim,” the judge stated in her ruling.


Major legal groups won’t support ENDA because of religious exemption

Shannon Minter, NCLR, gay news, Washington Blade

Shannon Minter said the National Center for Lesbian Rights doesn’t support the current version of ENDA. (Photo courtesy NCLR)

Two major LGBT legal groups announced on Thursday they don’t support the current version of the Employment Non-Discrimination Act pending before Congress because of the bill’s religious exemption.

The National Center for Lesbian Rights and the Transgender Law Center told the Washington Blade they don’t support ENDA because the religious exemption is greater than it is under Title VII of the Civil Rights Act of 1964 for other classifications of people.

Shannon Minter, legal director for the National Center for Lesbian Rights, said the religious exemption must be more narrow if his organization is to continue backing ENDA.

“We strongly oppose any religious exemption in ENDA or any other federal, state, or local non-discrimination law that is broader than the religious exemption that already exists under federal civil rights laws,” Minter said. “We do not support legislation that will create a new and broader exemption for LGBT people than exists for other protected groups. While we are confident the current discriminatory religious exemption in ENDA will not be part of the final legislation, we will not continue to support ENDA if it is not changed to be consistent with Title VII’s religious exemption.”

To clarify, Minter said his organization “does not support any version of ENDA that contains the current discriminatory religious exclusion.”

NCLR was among the groups — along with the American Civil Liberties Union, the Transgender Law Center and Lambda Legal — that wrote an open letter to Sen. Jeff Merkely (D-Ore.) upon ENDA’s introduction last year expressing “grave concerns” over the religious exemption.

Mark Snyder, spokesperson for the Transgender Law Center, reaffirmed the concerns expressed over the religious exemption in that letter on Thursday via an email to the Blade.

“We reaffirm the joint statement we issued last spring that outlined our very grave concerns with the religious exemption in ENDA that is significantly broader than the exemptions in other federal civil rights laws like Title VII,” Snyder said. “Our laws should not treat discrimination against LGBT people as a more acceptable form of discrimination.”

But Snyder went further on Thursday by unequivocally saying his organization won’t support ENDA as long as the current religious exemption remains in the legislation.

“Over the past year, the public conversation and context regarding religious exemptions to nondiscrimination laws has evolved significantly,” Snyder said. “As a result, at this time we are unable to support ENDA in its current form. We are fully committed to continuing to work for the passage of a law like ENDA that contains an exemption for religious organizations that is no broader than the exemption in Title VII.”

ENDA’s religious exemption would provide leeway for religious institutions, like churches or religious schools, to discriminate against LGBT workers in non-ministerial positions even if the bill were to become law. It’s broader than similar exemptions under Title VII of the Civil Rights Act of 1964 for categories of race, gender, religion and national origin.

On Wednesday, the Washington Blade reported that numerous national LGBT groups — including the ACLU and Lambda — continue to support ENDA even with the current religious exemption. Prior to the announcements from NCLR and the Transgender Law Center, the only national LGBT group to withhold support for ENDA was the grassroots group GetEQUAL.

Also on Thursday, the statewide LGBT group Equality Illinois issued a statement on ENDA, saying the religious exemption has to be removed from “any bill that moves forward in either chamber.”

“We support the proposed federal Employment Non-Discrimination Act, which aims to prohibit workplace discrimination against LGBT Americans, but we strongly oppose including any exemptions that would give LGBT people less protection than other protected groups already enjoy under federal civil rights law,” the statement says. “Illinois’ own Human Rights Act, enacted in 2005 with bipartisan support, has worked effectively to protect LGBT employees on the same terms as other groups. To add new and far broader religious exemptions to LGBT nondiscrimination laws would set a dangerous precedent for new carve-outs to other existing federal civil rights law.”

The statement thanks the U.S. senators from Illinois — Richard Durbin (D-Ill.) and Mark Kirk (R-Ill.) — for their work on ENDA, as well as U.S. House members who have co-sponsored the bill.

“We know that they are committed to fully equal treatment of LGBT Americans, and we feel confident that the current discriminatory religious exemption in ENDA will not be part of the final legislation that reaches the President,” the statement says. “We will continue to work with the Illinois Congressional Delegation and our national partners to remove this discriminatory exclusion from any bill that moves forward in either chamber in the future.”


U.S. Attorney challenges use of civil rights law

Peter TerVeer, gay news, gay politics dc

Peter TerVeer (Blade photo by Michael Key)

The United States Attorney for the District of Columbia filed court papers on Dec. 17 arguing that a gay man, who sued the Library of Congress for firing him because of his sexual orientation, failed to show he’s entitled to protection under Title VII of the U.S. Civil Rights Act of 1964.

The court filing by U.S. Attorney Ronald C. Machen Jr., who was appointed by President Obama, places the Obama administration in the awkward position of opposing a gay discrimination claim under Title VII.

In a lawsuit filed against the Library of Congress in August 2012, former management analyst Peter TerVeer, 30, says he was fired from his job after being harassed and humiliated for more than a year by a supervisor who repeatedly quoted biblical passages condemning homosexuality.

The lawsuit charges that although TerVeer was targeted because he’s gay, he suffered employment discrimination and harassment based on his gender, gender stereotyping and his religious beliefs, which he says didn’t conform to those of supervisor John Mech.

Title VII of the famed 1964 Civil Rights Act bans discrimination based on race, religion, ethnicity, gender and, according to recent court rulings, gender identity, but not sexual orientation by itself.

According to the lawsuit, TerVeer and Mech had a cordial working relationship from the time TerVeer was hired in February 2008 as a management analyst in the library’s Auditing Division. It says TerVeer received high performance ratings and two promotions between 2008 and 2010.

The lawsuit says Mech allegedly became hostile and unfairly critical of TerVeer’s work performance and created an unbearably hostile work environment after Mech learned TerVeer was gay.

The government’s filing of a motion to dismiss the case on legal and procedural grounds comes at a time when gay rights attorneys are seeking to persuade courts to treat anti-gay discrimination as a form of sex discrimination protected under Title VII.

“We believe that the allegations in the complaint are insufficient to substantiate a Title VII claim,” said Charles Miller, a spokesperson for the Justice Department’s Civil Division.

Miller pointed to an April 2012 ruling by the Library of Congress’s in-house equal employment opportunity division, which investigated TerVeer’s allegations of discrimination and harassment and dismissed an in-house complaint he filed in September 2011 on grounds that the allegations could not be substantiated.

“The Executive Branch is of course opposed to discrimination on the basis of sexual orientation, and this filing does not reflect any contrary policy,” Miller told the Blade.

But Christopher Brown of the D.C. law firm Ackerman Brown, which is representing TerVeer, said the government’s motion to dismiss the case “relies on legal precedent that excludes LGBT employees from protection under Title VII.”

Brown declined to comment further on the government’s arguments, saying TerVeer’s legal team prefers not to comment in detail on pending litigation.

Greg Nevins, supervising attorney for the gay litigation group Lambda Legal Defense and Education Fund, which is monitoring the TerVeer case, said the government’s motion to dismiss appears to be arguing that TerVeer did not present sufficient evidence to show that his supervisor targeted him for discrimination because TerVeer displayed mannerisms or behavior of a stereotypical gay man, which some might view as being effeminate.

“I think what the U.S. Attorney is saying here is a masculine gay man or a feminine lesbian would not be covered under Title VII,” Nevins said. “Some court rulings have essentially said Title VII does not apply to sexual orientation.”

In a landmark ruling last April, the U.S. Equal Employment Opportunity Commission declared that transgender people are protected against job discrimination under Title VII because bias against their gender identity is equivalent to sex discrimination. The EEOC ruling followed several appeals court decisions holding that transgender people were protected under Title VII.

Lambda Legal and other LGBT advocacy organizations say they hope to persuade courts that gay men and lesbians enjoy Title VII protections. They argue that sexual orientation discrimination is also linked to gender role stereotyping and bias, regardless of whether the victim is perceived as masculine or feminine.

TerVeer’s lawsuit says he also was targeted for retaliation after he filed his discrimination complaint with the library’s in-house EEO office, which is known as the Office of Opportunity, Inclusiveness and Compliance.

“Plaintiff’s discrimination and retaliation claims fall short,” Machen and two other government attorneys argue in their Dec. 17 motion seeking to dismiss the case, which was filed in U.S. District Court for the District of Columbia.

“Plaintiff alleges that he was subject to harassment after his employer learned that he was gay, and he presents his claim as one of non-conformity with sex stereotypes,” the motion to dismiss says. “But the detailed allegations in the complaint do not provide what courts have held is required to show that sex stereotyping was the cause of his employer’s actions.”

The motion to dismiss adds, “[C]ourts have generally required plaintiffs to set forth specific allegations regarding the particular ways in which an employee failed to conform to such stereotypes — generally relating to an employee’s behavior, demeanor or appearance in the workplace — and allegations to support the claim that this non-conformity negatively influenced the employer’s decision … In this case, however, plaintiff fails to offer anything more than the conclusory statement that, as a result of his sexual orientation, ‘he did not conform to the defendant’s gender stereotypes associated with men under Mech’s supervision.’”

One civil rights attorney familiar with the case, who spoke on condition of anonymity, said the U.S. Attorney’s office was fulfilling its role in defending its client — the Library of Congress — and should not be faulted for arguing against TerVeer’s attempt to invoke protection from Title VII.

“The government’s argument that the complainant fails to allege sufficient facts to state a claim … are typical arguments that they’d make equally if the plaintiff were female or black rather than gay,” the attorney said.

The government’s motion to dismiss the case is based mostly on procedural and legal grounds rather than on the merits of TerVeer’s specific allegations of discrimination and retaliation.

The government’s motion cites legal and procedural grounds to seek the dismissal of a separate claim in the lawsuit that the firing violated TerVeer’s Fifth Amendment constitutional right to due process and equal protection under the law.

In addition, it cites procedural grounds to call on the court to dismiss separate claims in the lawsuit that the library violated the Library of Congress Act, which bans discrimination based on factors unrelated to an employee’s ability to perform his or her job; and an internal library policy banning sexual orientation discrimination.

Library investigation finds no substantiation of discrimination

The motion to dismiss releases publicly for the first time the April 26, 2012 ruling by the library’s Office of Opportunity, Inclusiveness and Compliance (OIC) that rejects TerVeer’s allegations on grounds that they could not be substantiated or proven.

The 14-page ruling by the OIC, which was filed in court by the U.S. Attorney’s office as “Exhibit D,” was based on an in-house library investigation into a discrimination complaint filed by TerVeer on Nov. 9, 2011, according to OIC acting supervisor Vicki Magnus.

Magnus discusses the findings in an April 26 letter to Brown, TerVeer’s attorney, which the U.S. Attorney’s office submitted in court as part of Exhibit D.

“Based on the available evidence, the Office of Opportunity, Inclusiveness and Compliance (OIC) does not find sufficient evidence to support Complainant’s allegations that he was discriminated against based on religion, sex, and reprisal, and that he was subjected to sexual harassment and a hostile work environment in his meetings with supervisors regarding performance and in actions taken by supervisors regarding his performance,” Magnus said in her letter.

In what potentially could be damaging to TerVeer’s lawsuit, Magnus notes that the OIC investigation into TerVeer’s discrimination and retaliation complaint included interviews of and testimony by five of TerVeer’s co-workers. Each of the five testified that they personally observed less than satisfactory work performance by TerVeer, according to the OIC ruling.

In his complaint, TerVeer accuses his immediate supervisor, John Mech, and a higher level supervisor, Nicholas Christopher, of giving him a lower job performance rating based on anti-gay bias.

The five co-workers, “each of whom personally observed complainant’s performance, fully support the reasons presented by management justifying their decision to issue complainant poor performance ratings and to deny complainant a [performance based salary increase].”

Brown, TerVeer’s attorney, declined to comment on the OIC ruling or its potential impact on the lawsuit.

The library’s official reason for firing TerVeer was his failure to report to work after a leave of absence he requested and received permission to take had expired. TerVeer told reporters in a news conference in April that his doctor and therapist urged him to take a leave from work after the hostile work environment he said Mech created caused him to suffer severe emotional distress.

He said the library refused to grant his request to be transferred to another office under another supervisor, making it impossible for him to return to work.


Year in Review: EEOC issues landmark decision banning trans bias

The U.S. Equal Employment Opportunity Commission (EEOC) ruled in April that job discrimination against employees due to their gender identity is equivalent to sex discrimination under existing federal law.

Transgender advocates joined legal experts in calling the ruling a historic development that provides transgender people in the public and private sector workforce with full coverage under Title VII of the U.S. Civil Rights Act of 1964.

“[W]e conclude that intentional discrimination against a transgender individual because the person is transgender is, by definition, discrimination ‘based on…sex,’ and such discrimination therefore violates Title VII,” said the commission in its 5-0 ruling.

The decision was handed down as part of its resolution of a case filed by the Transgender Law Center on behalf of Mia Macy, a transgender woman who charged that she was denied a job as a ballistics technician with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives’ lab in Walnut Creek, Calif.

Macy alleged that ATF officials were in the process of hiring her but claimed the job was no longer available due to budget cuts after she informed them she was transitioning from male to female. She learned later that ATF gave the job to someone else.

Masen Davis, executive director of the Transgender Law Center, said it would be hard to overstate the significance of the EEOC decision.

“Transgender people already face tremendous rates of discrimination and unemployment,” Davis said. “The decision today ensures that every transgender person in the United States will have legal recourse to employment discrimination and with it a way to safeguard their access to vital employment benefits such as health insurance and retirement savings plans.”